04 April 2014

The strategy of developing an ontology or models of disability as a prior step to settling ethical issues regarding disabilities is highly problematic, for two reasons. First, key definitional aspects of disability are normative, and cannot helpfully be made value-neutral. Second, if we accept that the contested concept of disability is value-laden, it is far from obvious that there are definitive reasons for opting for an interpretation of the concept over another. I conclude that the concept of disability is better left ethically open-ended or broad enough to encompass the examination of various ethical issues (such as oppression, minority rights or physical discomfort). Alternatively, the concept of disability could be altogether abandoned in order to focus on specific issues without being hindered by debates about the nature of disability. Only political costs, rather than conceptual considerations internal to the models, could be weighed against such a conclusion.

Beaudry states that

Anyone familiar with disability studies will be aware that there are various models of disability,
that is, various ways to conceptualize what “disability” means, descriptively and normatively. In
spite of a multiplication of models, a general distinction can helpfully be made between
individual and social ones.

The “social model” of disability took off in the seventies, propelled by disability activists and
later theorized by Vic Finkelstein (1980) and Michael Oliver (1990) among others. The social
model was a reaction to the individual “medical model”, which conceptualized disability as a
tragedy or problem localized in an individual body or mind and the definition and solution of
which was to be provided by medical experts. By contrast, the social model presented disability
as a social phenomenon, caused by social oppression and prejudices rather than by individual
“impairments” in the person. The social model thus defines impairments as defective limbs or
mechanisms in the body, and “disability” as the exclusion from which impaired people suffered.
This exclusion is the real problem and it is caused by a social failure to make proper inclusivist
arrangements rather than by individual biological dysfunctions.

Although the individual/medical model remains mainstream in medical and biomedical circles,
the discipline of disability studies considers that the social model is the “new paradigm” and
heavily criticizes the medical model, perceived as outdated and oppressive.

It may immediately seem odd to have sociologists and disability activists telling medical doctors
what to do, as these experts seem to speak from different disciplines. Their common language,
however, is power, and social modellists claim that individualist conceptions of disability are
constructed along ideological guidelines while claiming to have a scientific objectivity (Oliver,
1990). Disability theorists aim at reversing unjustified assumptions inherent to the medical
model and at empowering disabled people as their slogan, popularized in the 1990’s, “Nothing
About Us Without Us” suggests.

While it is wise to remember that policies about health and medical discourses may conceal
ideological content, it also seems quite radical to argue that disability is exclusively a social
phenomenon, to be dealt with by social measures. Yet, such is the claim of social modellists.

As the “new paradigm”, the social model of disability underwent various criticisms and this
essay suggests that many of them misfire by attempting to be ontological rather than political
arguments. Conversely, I also suggest that social modellists may overstep the boundaries of
their criticism of ideological/oppressive use of the medicalization of disability by being oversuspicious
of all individualist/experiential standpoints on disability. It is not clear that all such
standpoints hinder the full inclusion of disabled people within society; in fact, their proponents
think the contrary. My overarching claim is that the disagreement between individual and social
modellists about whether disability should qualify individual experiences or social experiences,
or both, is largely based on the political consequences of doing so. Since individual and social
modellists have substantially different ethical issues in mind, it may be a more productive
approach to focus on these more specific ethical issues and either use an ethically opened
version of the concept of disability or abandon it altogether. I grant that potentially valid political reasons may be weighed against such a proposal. These reasons, however, should be
presented in terms of political costs rather than as confused ontological arguments.

In Ritson v Burns [2014] NSWSC 272 McCallum J in the NSW Supreme Court has awarded $7,500 to a former policeman regarding publication of a defamatory statement to a single person.

That judgment, and preceding cases, are worth reading carefully.

The Supreme Court was satisfied that Ritson, now a private agent, was "extremely hurt by the defamatory remark that he is a criminal". Ritson initiated defamation proceedings in 2011 over publications related to his 2009 suspension from duty for telling a man in custody in 2006 that the man's partner was transgender.

Ritson and a colleague were charged in 2009 with an offence under the Privacy and Personal Information Protection Act 1998 (NSW), were convicted of that offence in local court and sentenced to 125 hours of community service. Ritson was accordingly suspended from duty without pay but following a successful "hardship application" part of his salary was reinstated.

He had appealed the magistrate's decision immediately on conviction and appears to have concurrently commenced proceedings against the Commissioner of Police under the Privacy and Personal Information Protection Act in the then NSW Administrative Decisions Tribunal, including the claim of breach of privacy in relation to the disclosure to a third party of his suspension status and remuneration. In QQ v Commissioner of Police, New South Wales Police Force [2011] NSWADT 54 that information was said to have been published on a newspaper website by the third party.

In 2010 the conviction was quashed in R v Ritson; R v Stacey [2010] NSWDC 160, with Ritson and colleague being held not to have improperly disclosed personal information.

Action against Burns was added in 2012, with Ritson claiming Burns told a process server that "Brendan Ritson is a criminal. I'm not going to give you my address; you can go and serve Santa Claus". The Court noted a subsequent email from Burns to Ritson’s solicitor that featured the statement -

Your client Mr Ritson is a deceitful and contemptuous little grub. Did you know Grubs crawl close to the ground Sir? Your client Mr Ritson can go and get stuffed.

Overall the Court appears to have been unimpressed, with McCallum J - in noting the suggestion that Santa be served - commenting

In due course an order was made for substituted service (not in the manner suggested by Mr Burns to Mr Slater).

Ritson - characterised by the Court as "a competent, honourable police officer who acted with integrity" - indicated that the statements by Burns

did cause me significant distress that Mr Burns was persisting with making defamatory comments about me. I’d fought for several years to clear my name and successfully did so.

Burns in the past had made highly laudatory statements about Ritson, with a communication to the NSW Police Commissioner in 2002 reading

Constable Ritson is attached to Surry Hills LAC. This young man is a striking individual, who will look you straight in the eye. His honesty shines in his face like a beacon. I really like this young man.

I think it's very important to take an interest in our young police officers, and for me it's good to watch them mature and grow in confidence, as Constable Ritson is.

So Commissioner your job is not safe - cause there are young men like Constable Ritson who will fit into your shoes very easily one day.

Sir, he is a great young fella, doing a grand job - for you and for me. So next time you're in Surry Hills LAC put out your hand and shake the hand of a man destined for leadership. Constable Ritson, you're a fine Australian.

May Constable Ritson's life be blessed with many great journeys and policing future and happiness.

Some of the other claims were settled by agreement or were struck out in Ritson v Gay & Lesbian Community Publishing Limited [2012] NSWSC 483.

In unpacking the $7,500 damages McCallum J stated -

The overriding aspect of this assessment has been the need to provide consolation for the significant hurt to feelings experienced by Mr Ritson but vindication of reputation is not irrelevant.

was formerly a police officer in the NSW Police Force. He ceased to be a member of the NSW Police Force on 10 March 2011, having reached the rank of Senior Constable ....

The background relationship between Mr Ritson and the NSW Police Force provides some context to the central events which are the subject of determination in these proceedings. Mr Ritson submits that the context is of central importance.

Mr Ritson was a member of the NSW Police Force from 21 December 2001 until 10 March 2011. He spent most of his service in the general duties area of the police force, and was attached to the Surry Hills Local Area Command. When he left, he was a Senior Constable.

The course of his service in the NSW Police Force was not an entirely smooth one. Mr Ritson made reports of misconduct concerning police officers who were attached to the Kings Cross Local Area Command. He also made a number of public interest disclosures concerning corrupt conduct alleged to have been engaged in by members of the NSW Police Force, including commissioned officers. One of those officers had been attached to the Kings Cross Local Area Command.

Subsequently to these complaints, confidential information concerning Mr Ritson was, he asserts, improperly accessed by members of the NSW Police Force who were not authorised so to do, and disclosed to third parties, including members of the public.

Mr Ritson was discharged from the NSW Police Force as a result of recognised work-related injuries. His discharge did not arise in any way from any misconduct or any other unacceptable behaviour.

Mr Ritson relies upon the rocky course of his service as a police officer to justify his belief that the failure to investigate his complaint ... was based upon matters personal to him, rather than legitimate operational reasons.

On 25 November 2011, Mr Paul Carey, the Assistant Commissioner, who was the Commander of Professional Standards Command, acknowledged in a letter to MrRitson that a number of the investigations of which he was the subject, and the communications with him about them, were not satisfactory in many respects. Mr Carey said, that as a consequence of MrRitson's legitimate and appropriate registration of his concerns about this inappropriate conduct, a review was undertaken of the complaint system, and procedures were amended to address many of the concerns that Mr Ritson had raised.

The letter from Assistant Commissioner Carey to Mr Ritson included this paragraph:

"The NSW Police Force has taken all practicable steps to ensure your files are never again improperly disclosed to, or accessed by, third parties, and it genuinely regrets that the shortcomings and mistakes referred to above have caused you injury, distress and humiliation."

... In 2009, Mr Ritson brought proceedings against the Commissioner of Police in the Administrative Decisions Tribunal of NSW. Those initial proceedings were settled on the basis of confidential terms. There have been a number of other proceedings since then.

As well, Mr Ritson has taken civil proceedings for assault against a serving police officer, which resulted in a small award of damages in his favour. Subsequent criminal proceedings brought by him, as a private informant, against the same police officer were dismissed.

This short description indicates that it is unsurprising that Mr Ritson has taken the refusal to investigate his complaints to be a demonstration of ongoing bad faith by members of the NSW Police Force located at the Kings Cross Local Area Command towards him. Whether or not he is correct in his perception, he attributes to them such ill motivation in the decision to decline to investigate his complaint.

Failing to notify its verifier - AsureQuality - of significant concerns that dairy product had not been processed in accordance with its Risk Management Programme

Failing to notify the MPI Director General within 24 hours that exported dairy product was not fit for intended purpose.

In what has been dubbed 'The Fonterra botulism scare' the food group was alleged to failed to comply with food safety and quality obligations under the Food Act (NZ) and Animal Products Act (NZ). Investigation by Fonterra and the MPI considered contamination at Fonterra's Hautapu milk processing facility prior to a precautionary whey protein concentrate (WPC80) recall in 2013.

In Wellington District Court Fonterra was fined NZ$60,000 for each of three charges and NZ $120,000 for a fourth charge, with the Hobbs J referring to mitigating factors such as Fonterra's early guilty plea and steps it took to address the issue.

The Court accepted that

the offending resulted from careless failure to follow proper procedure rather than a deliberate or reckless plan - things could have and should have been done better.

Fonterra's operational review in September 2013 indicated that contamination occurred in May 2012 after workers became concerned a piece of plastic had fallen into a drier. Rather than downgrade the product it was decided to reprocess the powder, using a non-standard transfer pipe that was thought to be the source of the contamination, ultimately found to be a harmless strain of bacteria rather than clostridium botulinum. Some 38 metric tonnes of contaminated powder had been sold to third party manufacturers who used it to produce infant formula, protein drinks and other beverages (in all an estimated 1,000 tons of third party consumer products by the time of the recall).

The incident led to a precautionary global recall of products containing the contaminated powder and litigation that saw Fonterra reach settlements with seven of eight customers affected by the recall.

The group currently faces civil claims by France's Danone (manufacturer of the infant formula Nutricia), for breaches of the Fair Trading Act 1986 (NZ) and tortious conduct. Danone is taking action through an arbitration panel in Singapore and New Zealand's High Court, after failing to reach a compensation agreement.

In April 2011, Lindsay Kamakahi caused an international stir by suing the American Society for Reproductive Medicine (ASRM), the Society for Assisted Reproductive Technology (SART), SART-member fertility clinics, and a number of egg donor agencies on behalf of herself and other oocyte donors. The suit challenged the ASRM-SART oocyte donor compensation guidelines, which limit payments to egg donors to $5,000 ($10,000 under special circumstances), as an illegal price-fixing agreement in violation of United States antitrust laws.

Ensuing discussion of the case has touched on familiar debates surrounding coercion, commodification, and exploitation. It has also revealed many misconceptions about oocyte donation, the allegations in the case, and antitrust law’s application to the ASRM-SART oocyte donor compensation guidelines. Regardless of outcome, the suit is an important one that could signal a change in public attitudes about the propriety of mixing money with motherhood. It should - and will - be closely watched.

Krawiec comments that

Kamakahi’s suit, despite the hoopla accompanying it, is in many ways unexceptional, alleging a
fairly straightforward violation of the Sherman Act’s prohibition against contracts, conspiracies,
and combinations in restraint of trade. But oocytes are hardly the common stuff of Sherman
Act claims, and the application of federal antitrust law in such a new and unusual setting was
bound to draw substantial attention.

Ensuing discussion of the case has touched on familiar debates surrounding coercion,
commodification, and exploitation. It has also revealed many misconceptions about oocyte
donation, the allegations in the case, and antitrust law’s application to the ASRM-SART oocyte
donor compensation guidelines, some of which I aim to dispel in this article. For example,
ASRM and others have defended the guidelines as a means to ensure low-cost fertility services
for their patients, a contention that, as I will later explain, is flatly at odds with basic economic
theory and evidence. Others, including ASRM representatives, have derided the suit as frivolous,
an allegation that should be put to rest by the court’s recent denial of the defendants’ motion to
dismiss. Although the case is still in the early stages and the outcome remains to be seen, the
complaint is far from frivolous.

The Filming Approval Bill 2014 (Vic) has been read a first time in the Victorian Legislative Council.

The Bill provides for an Act to "establish film friendly principles for the approval of film permits by public agencies, to provide for the making of film friendly guidelines and to make consequential amendments to other Acts and for other purposes".

The Principles are identified in Schedule 1 and explained as follows -

Principle 1--Approval

This principle provides that a public agency that receives an
application for a film permit must not unreasonably withhold
the approval of that application, subject to this Act and any
other Act. The approval of an application for a film permit is
unreasonably withheld if a public agency does not attempt to
address its concerns by giving approval subject to terms and
conditions, or take reasonable steps to work with the applicant
to identify alternative locations for filming.
Principle 1.3 provides that approval is subject to any
requirements of a public agency to consider public amenity,
safety and security, environmental and heritage impacts.
Under principle 1.4, approval is also subject to any operational
requirements of a public agency, including commercial
agreements and the maintenance of any land or facilities.
Commercial agreements that restrict a public agency's ability to
allow commercial filming may include sponsorship agreements.
The need to maintain land or facilities, including planned
maintenance, may also restrict a public agency's ability to allow
commercial filming.

Principle 2--Timeliness

A public agency must approve or refuse an application for a
film permit in a timely manner, and it must take reasonable
steps to respond to an applicant within 5 business days.
A response to an applicant may be a determination of the
application, or an acknowledgement of receipt of the
application.

Principle 3--Reasons for refusal

A public agency that refuses to approve an application for a film
permit must give reasons to the applicant for the refusal.

Principle 4--Point of contact

A public agency must take reasonable steps to provide a single
point of contact to deal with commercial filming on public land.
This principle ensures a public agency takes reasonable steps to
provide a single point of contact to the public in order to
streamline the commercial filming industry's access to the
public agency. This principle does not prevent a public agency
from processing applications for various matters related to
commercial filming in different parts of the agency.
For example, a Council may process a filming permit
application in one area and an application to secure parking for
a commercial filming project in another area.

Principle 5--Standard forms

A public agency must ensure that any application forms and
other documents required by the public agency to consider an
application for a film permit, other than forms and documents
prescribed in regulations or set by an Order in Council, are
consistent with any standard forms or documents issued by Film
Victoria. If an application form or other document used by a
public agency is different from a standard form or document
issued by Film Victoria, the form or document must not request
any information from an applicant that is not necessary to
consider the application.
This principle will enable a consistent approach to filming
permit application forms that is as streamlined as possible under
filming approval legislation.

Principle 6--Fees

This principle provides that where a public agency has power to
charge fees for film permit applications or the issuing of film
permits under filming approval legislation, that agency must not
set fees above cost recovery unless specifically authorised under
another Act. The public agency must also take the broader
economic benefits that commercial filming brings to the
community into consideration when setting fees that are not
prescribed in regulations or set by the Governor in Council.
This principle does not prevent a public agency from taking
other relevant matters into account when setting fees for film
permit applications or the issuing of film permits.

Principle 7--Accessible information

A public agency that has the power to issue film permits must
publish information about how a person may apply for a film
permit on its website, or on a website approved by Film
Victoria. Film Victoria may request a public agency to publish
any other relevant information regarding these principles, or to
publish information on a website other than the agency's
website.
This principle ensures that information on commercial filming
on public land in Victoria is publicly and easily accessible, and
that the application process for a filming permit is transparent.

Principle 8--Staff training

A public agency must take reasonable steps to ensure that staff
responsible for considering and issuing film permits are given
appropriate information regarding the film industry.
This principle will ensure that public agency staff responsible
for considering and issuing film permits have sufficient
knowledge to assist commercial filmmakers with the filming
permit application process and general commercial filming
enquiries.

investigates offshore financial centers in the Caribbean from the perspective of offshore economies, onshore economies, and international investors. Using multilateral data on the international positions of banks, we analyze the flow of funds that has been transferred from the major banking systems to offshore financial centers located in the Caribbean and vice versa. We highlight that Caribbean offshore financial centers have been predominantly used by persons, resident in the United States, which send and receive most of the offshore funds, a process called round-tripping. For the major player in the Caribbean, the United States, we find that increases in offshore funds have been associated with reductions in corporate income tax revenues. These costs, however, have to be put into relation with the potential benefits, in the form of higher lending by commercial banks located in the United States.

Along with the empirical analysis, we analyze the advantages and disadvantages of offshore financial centers from the perspective of offshore and onshore governments, and international corporations and investors. In particular, we provide a review of the international tax legislation, focusing on activities and investments in traditional offshore centers, treaty heavens, and special concession havens. Although the vast majority of offshore transactions seem to be perfectly legal, there exist concerns that particular corporations and individuals might misuse offshore financial centers. For this reason, we discuss as well the major international initiatives on countering the harmful practices in offshore centers and tax havens.

Brei comments -

With the onset of the global financial crisis in 2008, the debate about offshore financial centers and tax havens has gained once again more attention. Over the past decades, a number of working groups have been formed by fiscal authorities and international institutions alike, with the objective of identifying and analyzing offshore jurisdictions and tax havens (see, amongst others, Gordon (1981), Edwards (1998), OECD (1987, 1998, 2001, 2009a, 2011), FATF (2000a, 2000b), FSF (2000a, 2000b), IMF (2000), US (2008a, 2008b)).

A long-standing concern has been that offshore financial centers and tax havens facilitate tax avoidance and evasion. Onshore governments have also been concerned that offshore centers amplify the opacity of financial institutions, building the ground for risk-shifting incentives. A number of international initiatives have been launched in the late 1990s, with the objective of improving the information exchange between offshore and onshore authorities. More recently these initiatives have been intensified in response to the financial and sovereign crises in the advanced economies (OECD (2012b)). Nevertheless, the use of offshore financial centers and tax havens appears to be highly demanded by international corporations, banks, investment funds, and individuals.

The decision of a country not to tax financial transactions, or to attract businesses by more favorable taxation, is a legitimate policy choice. Supporters of offshore centers argue that international tax competition is vital for the global economy, by providing companies an alternative to high-tax/high-spending regimes. In this regard, governments compete with each other and attract corporations and individuals by offering them a more business-friendly environment. The opponents argue that tax competition can be harmful, especially, when favorable fiscal and regulatory frameworks are coupled with strict secrecy provisions, and the unwillingness of an offshore center, or tax haven to cooperate with onshore governments in the identification of fraudulent transactions. Such a setting would inevitably favor the abuse of offshore centers and tax havens. It is thus essential that onshore and offshore authorities cooperate efficiently, and it is the key to success and sustainability of an offshore financial center.

It appears that the authorities of the major advanced economies tolerate the use of offshore financial centers and tax havens. In principle, national tax policies are against the use of offshore centers and tax havens. In practice, however, this policy is ambivalent, resulting from a conflict of the following objectives (Gordon (1981)): tax authorities try to (i) minimize unjustifiable tax avoidance and evasion; (ii) maintain the international competitiveness of domestic corporations; and (iii) preserve tax equity between investments at home and abroad. A potential erosion of
income taxes in the onshore economies, therefore, has to be related to the potential benefits of the use of offshore centers, which might include higher after-tax profits of corporations, more favorable and flexible business conditions, and/or increased bank lending at home. Indeed, much of the funds that are sent offshore are channeled back to the country of origin, allowing financial and non-financial firms to offer their products in the onshore jurisdictions at lower costs (McCauley and Seth (1992), IMF (2005), Rose and Spiegel (2007)).

Against these backdrops we investigate in this paper those offshore financial centers that are located in the Caribbean from the perspective of the offshore economies, onshore economies, and international investors. Using information on the international positions of banks, we analyze empirically the flow of funds across Caribbean offshore centers and the major banking systems. We shed light on several interrelated topics.

First, we discuss the identification of offshore financial centers and tax havens and quantify regulatory and fiscal differences for a number of offshore and onshore jurisdictions. Along we compare major macroeconomic indicators across Caribbean offshore centers and the other jurisdictions in the region, which do not host an offshore financial center. Not surprisingly, we find that offshore centers offer more favorable taxation to non-resident corporations and individuals, compared to our sample of onshore jurisdictions, with an average corporate income and capital gain tax rate for non-residents of 1% in the offshore centers, compared to tax rates that range from 25 to 35% in the onshore economies. Moreover, offshore centers provide stronger bank secrecy implied by fewer bilateral tax treaties and tax information exchange agreements. The differences in bank regulation are much less important. From a comparative perspective in the Caribbean, it appears that offshore centers have benefited from the presence of the financial center relative to non-offshore jurisdictions. For example, over the period 1997-2010, their average annual GDP per capita amounted to close to 21,000 US dollars, compared to an average of 4,000 dollars in the other small island economies, being highest in the Bahamas (70,000 US dollars) and the Cayman Islands (51,000 US dollars).

Second, we investigate the flow of funds that has been channeled through five Caribbean offshore centers (Bahamas, Bermuda, Cayman Islands, Netherland Antilles and Panama) over the period 1983-2010, using information from the locational international banking statistics of the Bank for International Settlements (BIS). As a matter of fact, we examine the origins and destinations of the flow of funds, and we identify net sending and receiving regions. We focus our analysis on round-tripping, a process during which funds from one country are sent abroad, to be subsequently re-invested in the origin country. It has been documented that multinational enterprises increasingly use round-tripping for different reasons, being it Indian multinationals in Mauritius, or US banks in
the Cayman Islands. From a global perspective, we highlight that the Caribbean offshore financial centers host the majority of international funds located in traditional offshore financial centers. Out of the approximately 4.6 trillion US dollars of BIS-reported international bank claims, located in offshore financial centers at end-2010, a significant share of 38% has been on the books of banks that are resident in the Cayman Islands, followed by the Bahamas with a share of close to 10%. The United States have been the main user of the Caribbean offshore facilities, sending and receiving the majority of Caribbean offshore funds.
Third, we investigate how an onshore economy might be affected when domestic corporations conduct businesses offshore, by quantifying the impact of the transfer of funds, from the United States to the Caribbean, on corporate income tax revenues and commercial bank lending in the United States. It appears that the use of offshore financial centers has been associated with reductions in US corporate income tax revenues. This negative effect for the onshore economy, however, has to be related to the positive effect, namely, the increase in commercial bank lending.

And lastly, we discuss in detail the advantages that are offered by offshore financial centers to international corporations and individuals, making a distinction between tax motivated and non-tax motivated offshore transactions. The discussion focuses as well on international differences in the taxation of repatriated foreign-source income in onshore economies. Although the vast majority of offshore transactions seem to be perfectly legal, we discuss a number of anti-abuse measures, introduced in onshore jurisdictions, aimed at countering the unacceptable use of offshore centers. Along we provide some case studies of how corporations have used existing loopholes in the international tax system to avoid, or to evade the payment of income taxes.
The paper is organized as follows. Section 2 identifies those jurisdictions that are classified as offshore financial centers and tax havens, and it compares a number of indicators on tax and regulatory systems across offshore and onshore economies. Section 3 quantifies some of the offshore financial activity from a global perspective and, for the Caribbean, from a multilateral perspective. Section 4 investigates the potential effects of round-tripping on corporate tax revenues and bank lending in the United States, and Section 5 examines the transactions that take place offshore from a qualitative perspective. The final section concludes.

'Importing Energy, Exporting Regulation' by James W. Coleman in Fordham Law Review considers other flows -

This Article identifies and addresses a growing contradiction at the heart of United States energy policy. States are the traditional energy regulators and energy policy innovators — a role that has only grown more important without a settled federal climate policy. But federal regulators and market pressures are increasingly demanding integrated national and international energy markets. Deregulation, the rise of renewable energy, the shale revolution, and new sources of motor fuel precursors like crude and ethanol have all increased interstate energy trade.

The Article shows how integrated national energy markets are driving states to regulate imported fuel and electricity based on how it was produced elsewhere. That is, states that import energy are now exporting their energy regulations to cover production in their trading partners. But exported regulation has its own problems: it threatens to splinter interstate markets, undercutting the federal push for integrated and efficient energy markets; and it violates the Constitution’s dormant commerce clause. Indeed, these innovative exported regulations are now caught up in litigation across the country.

The Article argues that, to preserve states’ role, while also maintaining a national energy market, Congress should empower the Federal Energy Regulatory Commission to immunize non-discriminatory state laws from commerce clause scrutiny if, and only if, they do not threaten to splinter interstate energy markets. The project considers how these federal regulators might assess state energy laws in three salient areas: regulation of imported electricity, regulation of imported fuel, and regulation of energy export and supply chains.

03 April 2014

a liberal groundwork for espionage among nations. First, it presents the inadequacy of the prominent arguments for espionage embedded mainly in Just War Theory. It argues, alternatively, that a modicum of cooperation in the international sphere calls for a new legal obligation in international law-a duty of basic transparency among nations. Modern international law is interpreted, therefore, as an attempt to maintain the necessary measure of transparency in international relations: the legality of espionage reflects the limited enforcement of a duty of basic transparency. By fulfilling a duty of transparency, a transparent state cannot catch its neighbors off guard as far as its strategic intentions, as in the case of surprise aggression. This paper argues, however, that transparency is a structural feature: it is an attribute of typical liberal regimes. Non-liberal nations are, therefore, likely to oppose a duty of transparency as incompatible with their religious or political doctrines. Transparency is therefore essential for the co-existence of nations and yet politically unreachable. Espionage among nations, this paper argues, enables the resolution of this apparently hopeless and fundamental conflict in international relations. It facilitates the enforcement of transparency on non-liberal nations without imposing a liberal structure on them. Hence, it is argued that a rule obligating a basic duty of transparency among nations, enforced exclusively through espionage, is morally justifiable — since it would be endorsed by all nations in an impartial, fair process of global deliberation.

Bitton comments

Espionage among nations is an exceptionally old and extensive human
endeavor. In times of both war and peace intelligence organizations are allocated a
generous slice of states’ resources. Foreign espionage also entails considerable
moral harm. One would expect to find, therefore, that it is anchored in solid moral
and legal underpinnings. Surprisingly, this costly and harmful activity lacks a clear
justification. Legal and philosophical scholarship is extremely interested in, for
example, the legitimacy of war among nations, and the proper legal framework for
regulating war. The legitimacy of the domestic use of governmental force, too, is
debated rigorously. Yet when it comes to espionage, moral theorists are as soundless as spies. If espionage is even considered, it is generally perceived as an extra-moral activity, one that takes place beyond the boundaries of ethics. Espionage is
frequently associated with a murky sphere in which the gravitational pull of states’
supreme interests bends the standard contours of moral space. This paper therefore
aims to answer one primary question: what is the appropriate ethical justification for
espionage? This justification, whatever it may be, should underpin the body of law
that regulates espionage.

My account of international espionage begins from the observation that
espionage between states is an undercover, state-sponsored intrusion into the
restricted space of another state for the sake of collecting information. Access to a
given space can be restricted in many ways, including — but not limited to —
physically, visually, acoustically, digitally, and legally. An intrusion into a restricted
space can be achieved through any known method of espionage, human or
technological.

Throughout my argument, I follow a basic distinction between espionage
during states of emergency (such as war or conflict) and espionage during peacetime
(or ordinary circumstances). I define an “emergency” as a time that calls for remedial action in order to address a clear, imminent, and serious threat posed by one state
against a basic interest of another. War is a classic state of emergency. An explicit
threat of war obviously creates an emergency as well. By definition, in “peacetime,”
State A has no indication that State B is planning any harmful action against it.
Espionage that is undertaken in response to emergencies can be justified sufficiently,
it seems to me, by reference to Just War Theory and the rules of necessity
and self-defense. It is peacetime espionage that poses the real justificatory challenge.
This paper offers a new theoretical justification for peacetime espionage
among nations. It consists of three parts. Part I takes on currently available
justifications for espionage, including the realist argument (Section I.A) and an
application of Just War Theory (Section I.B), and finds them inadequate. In Parts II
and III, I offer a new approach to justifying espionage. First, I argue that states
should be subject to a duty of basic transparency in their relations with other states.
Next, I develop the thesis that espionage serves as a transparency-enforcing device,
one that resolves an otherwise irresolvable political conflict between liberal and nonliberal
nations. In light of espionage’s sophisticated and essential role in international
relations, I argue that a rule that permits it as an instrument for the enforcement of a
duty of basic transparency among nations would be endorsed by all impartial,
rational, and reasonable nations.

02 April 2014

Fans of legal concision and wit will enjoy the short, tongue-in-cheek paper by William Baude from 2013 on 'Zombie Federalism'.

Baude comments that

The most natural question to ask about zombies and constitutional law is whether zombies are persons within the meaning of the Constitution. But that question turns out to be remarkably difficult.

The word “person” appears repeatedly throughout the Constitution, but without any clues about whether it extends to zombies.
There is no judicial precedent. ... There are no similar clues that the term excludes the undead.
Nor is there any good evidence of what James Madison thought about zombies.

This ambiguity is exacerbated by the fact that there are several different types of zombies. ...
What’s the best constitutional solution to this problem? Zombie Federalism.

The Constitution does not resolve the question of zombie personhood, so we should understand it to leave that question to state law. That is, states can choose to recognize zombie personhood, making them constitutional persons, or not.
This allows states to deal with the difficult moral and ethical line-drawing problems about the boundaries of life and death. ... And to the extent that zombies are ambulatory, it will allow them to vote with their feet by shambling to states that recognize zombie personhood.

Baude notes the inconvenient question of whether zombies would be "free persons" or "other persons".

The latter "would reanimate the 3/5 clause, which had previously been thought to be made irrelevant by the constitutional abolition of slavery".

Wondering about the adequacy of briefing clerics on religious visas after reports that Parramatta Local Court has accepted the plea by Muhammad Riaz Tasawar regarding the offence of solemnisation of a marriage by an unauthorised person. Tasawar was apparently the first person in NSW to be charged with the solemnisation of a marriage by an unauthorised person in the past 20 years.

The Marriage Act 1961 (Cth) provides for three categories of authorised celebrants who may solemnise marriages in Australia -

ministers of religion of recognised denominations (who are registered under Subdivision A of Division 1 of Part IV of the Act)

State and Territory Officers (who are authorised by virtue of Subdivision B of Division 1 of Part IV of the Act), and

Commonwealth-registered marriage celebrants (who are registered under Subdivision C of Division 1 of Part IV of the Act), a category encompassing both civil celebrants and ministers of religion who are not aligned with a recognised denomination.

Ministers of religion of recognised denominations who are authorised to solemnise marriages (an authorisation indicated through a registration number) may solemnise marriages according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which that person is a minister.

The cleric is entitled to be registered to solemnise marriages if nominated for registration by that denomination, ordinarily resident in Australia, and
at least twenty-one years of age. The Registrar of Ministers of Religion (a position held by the State/Territory BDM Registrars) may refuse an application for registration on the grounds that there are sufficient registered ministers of the denomination to meet the needs of the locality in which the applicant resides, the applicant is not a fit and proper person to solemnise marriages, or
the applicant is unlikely to devote a substantial part of his or her time to the performance of functions generally performed by a minister of religion.

The Act requires that a marriage must not be solemnised unless:

notice of the intended marriage has been given to the authorised celebrant within the required notice period,

each party has produced specific documents to the authorised celebrant: evidence of date and place of birth, evidence of identity and evidence of the termination of any previous marriage, where relevant,

each party has made a declaration as to his or her belief that there is no legal impediment to the marriage, and

the authorised celebrant is satisfied that the marriage will be valid, including that each party has given real consent .

The authorised celebrant must also ensure that information about marriage education and counseling is made available to the parties to the marriage.

Tasawar was apparently living in Australia on a Religious Workers visa (subclass 428, now replaced by the Temporary Work (Long Stay) Activity visa), sponsored and employed as imam at the Mayfield mosque). That visa provides for the temporary stay of people who will be full-time religious workers in Australia, ie "work of a religious nature for which the applicant has had relevant religious training" and directly serving an organisation’s religious objectives, typically by providing spiritual leadership, providing teaching or guidance in religion, pastoral care and conducting worship ceremonies.
ministering, pastoral care or proselytising
other high level specialist work in relation to the above.

Tasawar argued that he believed he had done nothing wrong in "marrying" a 12 year old girl to a 26 year old man (in Australia on a student visa) because the union was never officially registered.

There is no indication in the reporting as to whether he was being disingenuous, simply had not been alerted about expectations regarding marriage under the Marriage Act 1961 (Cth) or the briefing is inadequate.

The SMH reports that the cleric

met with the 26-year-old man, his 12-year-old bride-to-be, the girl's father, her younger brothers and sister and another man. The group all acted as witnesses to the marriage which was conducted by Tasawar. ...

Police were made aware of the underage marriage when, a month later, the
26-year-old man, applied at Centrelink to become the child's guardian.

He was arrested and charged with 25 counts of sexual intercourse with an underage child. ...

When Tasawar was arrested in February, he told police he didn't believe the marriage was a "full marriage".

"In his view, he did not believe it was a full marriage because he had not officially registered it... however throughout the interview [he] referred to it as a marriage," the agreed facts said.

Police alleged that the cleric, the 'husband' and the bride's father all believed the marriage was legitimate and official. The girl's 61 year old father was charged with allowing his daughter to be "joined in an illegal union" and to start a sexual relationship with the man.

Tasawar was fined $500 and deported to Pakistan on cancellation of his visa. The student (who is unidentified in the interests of the child) was also deported.

The action is a reminder of the importance of consent in national and international law. The Universal Declaration of Human Rights art 16(2) for example states that "Marriage shall be entered into only with the free and full consent of the intending spouses". There are reiterations in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The Convention on the Elimination of All Forms of Violence Against Women art 16(1)(b) prohibits forced marriage on the basis of a right to freely and fully consent to marriage. People under the age of 16 are deemed to lack the capacity to consent to marriage.

Human Rights Watch has released a detailed report title “They Know Everything We Do”: Telecom and Internet Surveillance in Ethiopia.

It features the following recommendations -

To the Government of Ethiopia

Enact protections for the right to privacy to prevent abuse and arbitrary use of
surveillance, national security, and law enforcement powers as guaranteed under
international law applicable to Ethiopia. Surveillance should occur only as provided in
law, be necessary and proportionate to achieve a legitimate aim, and be subject to
both judicial and parliamentary oversight.

Legal safeguards should limit the nature, scope, and duration of possible surveillance,
the grounds required for ordering them, and the authorities competent to authorize,
carry out, and supervise them.

Ensure that information obtained through email or telephone interception or access to
call records is inadmissible in courts unless a court warrant has been obtained. All
laws enabling the admissibility of intercepted information in court should be amended
to require a court warrant, including the Criminal Code, the Telecom Fraud
Proclamation, and the Prevention and Suppression of Money Laundering and the
Financing of Terrorism Proclamation.

Enact protections for call records and other “metadata” so that such information may
not be collected or accessed by police, security, or intelligence agencies without a
court order and oversight to prevent abuse, unauthorized use or disclosure of that
information.

Enforce the requirements for a court warrant prior to interception/surveillance under
the Anti-Terrorism Proclamation and the NISS Proclamation. Ethio Telecom should not
provide access to metadata or recorded phone calls without a warrant from a
competent, independent and impartial court in line with international standards. Any
data collection or surveillance conducted by the Information Network Security Agency
(INSA) or National Intelligence and Security Services (NISS) should require prior court
approval.

Immediately unblock all websites of political parties, media, and bloggers and commit
to not block such websites in the future.
• Immediately cease all jamming of radio and television stations and commit to not jam
radio and television stations in the future.

Cease harassing individuals for exercising their right to freedom of expression online
through social media and blogs.

Appropriately discipline or prosecute officials, regardless of rank or position, who
arbitrarily arrest or detain or ill-treat individuals on the basis of unlawfully intercepted
or acquired information. Impose criminal penalties for illegal surveillance by public or
private actors.

Report annually on the government’s use of surveillance powers. This reporting should
include: the number of data requests made to Ethio Telecom, cybercafés, or other
mobile and Internet service providers; the number of requests for real-time
interception or recording of phone calls; and the number of individuals or accounts
that were implicated by such requests.

Provide protections for the rights to freedom of expression and privacy to prevent
abuse of emergency powers to shut down networks or intercept communications.

Repeal or amend all laws that infringe upon privacy rights, the right to information, and
the rights to freedom of expression, association, movement, and peaceful assembly,
including the Anti-Terrorism Proclamation, the NISS Proclamation, the Telecom Fraud
Proclamation, and the Prevention and Suppression of Money Laundering and the
Financing of Terrorism, to bring them in line with international standards. Amendments
should include the following articles:

- Telecom Fraud Proclamation, articles 6(1) (criminalizes dissemination of
messages about activities punishable under the anti-terrorism law) and 10(3)
(criminalizes commercial use of VoIP).
To International Technology and Telecom Companies Serving Ethiopia

Assess human rights risks raised by potential business activity, including risk posed to
the rights of freedom of expression, access to information, association, and privacy.
Assessments should address risk of misuse of non-customized, “off-the-shelf”
equipment sold to governments that may be used to facilitate illegal surveillance or
censorship. Assessments should also address the risk of customizing products and
services for law enforcement, intelligence, and security agency customers.

As part of a tender or contract negotiation process, inquire about the end use and end
users of the products or services being provided, especially for “dual use” products,
including “lawful intercept” surveillance software and equipment.

Develop strategies to mitigate the risk of abuses linked to business operations and
new contracts, including by incorporating human rights safeguards into business
agreements. Such strategies should be consistent with the Global Network Initiative
(GNI) principles and the United Nations “Protect, Respect, and Remedy” Framework for
business and human rights.

Adopt policies and procedures to stop or address misuse of products and services,
including contractual provisions that designate end use and end users, the violation of
which would allow the company to withdraw services or cease technical support or
upgrades. Promptly investigate any misuse of products or services and take concrete
steps to address human rights abuses linked to business operations.

Adopt human rights policies outlining how the company will resist government
requests for censorship, illegal surveillance, or network shutdowns, including
procedures for narrowing requests that may be disproportionate or challenge requests
not supported by law.

Extend human rights policies and procedures to address the actions of resellers,
distributors, and other business partners.

Commit to independent and transparent third-party monitoring to ensure compliance
with human rights standards, including by joining a multi-stakeholder initiative like
the GNI.

Advocate for reform of surveillance or censorship laws to bring them in line with
international human rights standards.

Review any contracts or engagements initiated before 2008 and craft strategies to
address and mitigate any adverse harm that may flow from operations that currently
continue under these contracts, consistent with guidance provided by the GNI and UN
principles, both launched in 2008. As contracts come up for renewal, incorporate
human rights safeguards into newly negotiated contracts.

To the Governments of China, Germany, Italy, the United Kingdom, and Others

Regulate the export and trade of “dual use” surveillance and censorship technologies
such as deep packet inspection equipment and intrusion software. Require such
companies subject to national jurisdiction operating abroad to report on any human
rights policies and due diligence activity to prevent rights abuses and remedy them if
they arise.

•Introduce or implement legal frameworks, such as an independent ombudsperson,
that allow government institutions to monitor the human rights performance of
companies selling surveillance software, technology, or services subject to national
jurisdiction when they operate abroad in areas that carry serious human rights risks.
Frameworks should include an effective complaints mechanism accessible to
individuals and communities in Ethiopia, and those representing them, who allege
harmful conduct or impact by companies subject to national jurisdiction doing
business in Ethiopia, with findings and decisions binding on companies.

Communicate an expectation to the government of Ethiopia that companies operating
in Ethiopia should be able to implement the recommendations outlined above.

To the World Bank, African Development Bank, and other Donors

Undertake human rights due diligence on telecommunication projects in Ethiopia,
to prevent directly or indirectly supporting violations of the rights to privacy or
freedom of expression, association, or movement; or access to information
including through censorship, illegal surveillance, or network shutdowns. This
should include assessing the human rights risks of each activity prior to project
approval and throughout the life of the project, identifying measures to avoid or
mitigate risks, and comprehensively supervising the projects including through
third parties. This due diligence should extend to any government or private sector
partners to ensure that they are not implicated in violations.

Publicly and privately raise with government officials concerns about censorship,
illegal surveillance, and network shutdowns and that human rights violations may
undermine development priorities.

HRW comments that

the ruling Ethiopian People’s Revolutionary Democratic Front (EPRDF), a coalition
of ethnically-based political parties in power for more than 20 years, continues to severely
restrict the rights to freedom of expression, association, and peaceful assembly. It has
used repressive laws to decimate civil society organizations and independent media and
target individuals with politically-motivated prosecutions. The ethnic Oromo population
has been particularly affected, with the ruling party using the fear of the ongoing but
limited insurgency by the Oromo Liberation Front (OLF) in the Oromia region to justify
widespread repression of the ethnic Oromo population. Associations with other banned
groups, including Ginbot, are also used to justify repression.

As a result, the increasing technological ability of Ethiopians to communicate, express
their views, and organize is viewed less as a social benefit and more as a political threat
for the ruling party, which depends upon invasive monitoring and surveillance to maintain
control of its population.

The Ethiopian government has maintained strict control over Internet and mobile
technologies so it can monitor their use and limit the type of information that is being
communicated and accessed. Unlike most other African countries, Ethiopia has a complete
monopoly over its rapidly growing telecommunications sector through the state-owned
operator, Ethio Telecom. This monopoly ensures that Ethiopia can effectively limit access
to information and curtail freedoms of expression and association without any oversight
since independent legislative or judicial mechanisms that would ensure that surveillance
capabilities are not misused do not exist in Ethiopia.

All governments around the world engage in surveillance, but in most countries at least
some judicial and legislative mechanisms are in place to protect privacy and other rights.
In Ethiopia these mechanisms are largely absent. The government’s actual control is
exacerbated by the perception among Ethiopia’s population that government surveillance
is omnipresent. This results in considerable self-censorship, with many Ethiopians
refraining from openly communicating on a variety of topics across the telecom network.
This report is based on research conducted between September 2012 and February 2014,
including interviews with more than 100 people in 11 countries. It documents how the
Ethiopian government uses its control over the telecommunications system to restrict the
right to privacy and freedoms of expression and association, and access to information,
among other rights. These rights are entrenched in international law and frequently
touted by the government as part of Ethiopia’s constitution. In practice, they are
undercut by problematic national laws and practices by the authorities that wholly
disregard any legal protections.

Websites of opposition parties, independent media sites, blogs, and several international
media outlets are routinely blocked by government censors. Radio and television stations
are routinely jammed. Bloggers and Facebook users face harassment and the threat of
arrest should they refuse to tone down their online writings. The message is simple: selfcensor
to limit criticism of the government or you will be censored and subject to arrest.

Information gleaned from telecom and Internet sources is regularly used against
Ethiopians arrested for alleged anti-government activities. During interrogations, police
show suspects lists of phone calls and are questioned about the identity of callers,
particularly foreign callers. They play recorded phone conversations with friends and
family members. The information is routinely obtained without judicial warrants. While this
electronic “evidence” appears to be used mostly to compel suspects to confess or to
provide information, some recorded emails and phone calls have been submitted as
evidence in trials under the repressive Anti-Terrorism Proclamation.

The government has also used its telecom and Internet monopoly to curtail lawful opposition
activities. Phone networks have been shut down during peaceful protests. Some high-profile
Ethiopians in the diaspora have been targeted with highly advanced surveillance tools
designed to covertly monitor online activity and steal passwords and files.

In rural Ethiopia, where phone coverage and Internet access is very limited, the
government maintains control through extensive networks of informants and a grassroots
system of surveillance. This rural legacy means that ordinary Ethiopians commonly view
mobile phones and other new communications technologies as just another tool to
monitor them. As a result, self-censorship in phone and email communication is rampant
as people extend their long-held fears of government interference in their private lives to
their mobile phone use. These perceptions of phone surveillance are far more intrusive
than the reality, at least at present.

Ethiopia has acquired some of the world’s most advanced surveillance technologies, but
the scale of its actual telecom surveillance is limited by human capacity issues and a lack
of trust among key government departments. But while use of these technologies has been
limited to date, the historic fear of ordinary Ethiopians of questioning their government
and the perception of pervasive surveillance serves the same purpose: it silences
independent voices and limits freedom of speech and opinion. Human Rights Watch
research suggests that this may just be the beginning: Ethiopians may increasingly
experience far more prevalent unlawful use of phone and email surveillance should the
government’s human capacity increase.

While monitoring of communications can legitimately be used to combat criminal activity,
corruption, and terrorism, in Ethiopia there is little in the way of guidelines or directives on
surveillance of communications or use of collected information to ensure such practices
are not illegal. In different parts of the world, the rapid growth of information and
communications technology has provided new opportunities for individuals to
communicate in a manner and at a pace like never before, increasing the space for
political discourse and facilitating access to information. However, many Ethiopians have
not been able to enjoy these opportunities. Instead, information and communications
technology is being used as yet another method through which the government seeks to
exercise complete control over the population, stifling the rights to freedom of expression
and association, eroding privacy, and limiting access to information—all of which limit
opportunities for expressing contrary opinions and engaging in meaningful debate.
Court warrants are required for surveillance or searches but in practice none are issued.
Intercepted communications have become tools used to crack down on political dissenters
and other critics of the ruling party. Opposition party members, journalists, and young,
educated Oromos are among the key targets.

The infrastructure for surveillance was not created by the Ethiopian government alone, but
with the support of investors in the Internet and telecom sector, including Chinese and
European companies. These foreign companies have provided the products, services, and
expertise to modernize the sector.

Ethiopia should not only ensure that an appropriate legal framework is in place to protect
and respect privacy rights entrenched in international law, but also that this legal
framework is applied in practice. Companies that provide surveillance technology,
software, or services should adopt policies to ensure these products are being used for
legitimate law enforcement purposes and not to repress opposition parties, journalists,
bloggers, and others.

In an ideal world we'd have had a resounding statement by the High Court of Australia regarding human rights and the respect for the person - a personhood that is more than a stocktake of genitalia and performativity - but today's judgment in NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11 is welcome as a recognition of difference.

The HCA (French CJ, Hayne, Kiefel, Bell and Keane JJ) states that

Not all human beings can be classified by sex as either male or female. The Births, Deaths and Marriages Registration Act 1995 (NSW) expressly recognises that a person's sex may be ambiguous. It also recognises that a person's sex may be sufficiently important to the individual concerned to warrant that person undergoing a sex affirmation procedure to assist that person "to be considered to be a member of the opposite sex". When a person has undergone a sex affirmation procedure, s 32DC of the Act empowers the Registrar to register a change of sex of the person upon an application by that person.

The question in this appeal is whether it was within the Registrar's power to record in the Register that the sex of the respondent, Norrie, was, as she said in her application, "non‑specific". That question should be answered in the affirmative.

The Court [at 35-37] states that

The Registrar's initial determination of Norrie's application was right. The appropriate record of her change of sex was from "male" (as it may be taken to have previously been recorded outside of New South Wales) to "non‑specific". To make that record in the Register would be no more than to recognise, as the Act does, that not everyone is male or female and that the change to be registered was from an assumed registered classification outside of New South Wales as a male to, as Norrie's application put it, non‑specific.

The Registrar's submission must be rejected at the point at which it insists that the Registrar is required to decide whether he or she is satisfied (let alone that it has been demonstrated objectively) that, despite an application showing persisting ambiguity in the sex of the applicant following a sex affirmation procedure, the applicant's sex should be recorded in the Register as being either male or female. The registration of a change of sex records the facts supplied by the application so long as the application is supported in accordance with s 32DB.

The provision of the Act which acknowledges "ambiguities" and the context of the 1996 Amending Act, which referred to persons of "indeterminate sex", are a sufficient indication that the Act recognises that, as this Court observed in AB v Western Australia, "the sex of a person is not … in every case unequivocally male or female."

It goes on [at 43-44] to state

The submission made on behalf of the Registrar that, given s 32J of the Act, unacceptable confusion would ensue if the Act recognised more than two categories of sex or an "uncategorised" sex should be rejected.

The difficulty foreshadowed by this argument could only arise in cases where other legislation requires that a person is classified as male or female for the purpose of legal relations. For the most part, the sex of the individuals concerned is irrelevant to legal relations. In this regard, s 8(a) of the Interpretation Act 1987 (NSW) provides that "[i]n any Act or instrument … a word or expression that indicates one or more particular genders shall be taken to indicate every other gender". The chief, perhaps the only, case where the sex of the parties to the relationship is legally significant is marriage, as defined in the fashion found in s 5(1) of the Marriage Act 1961 (Cth).

As the Registrar acknowledged, the circumstance that s 32J operates subject to other laws of New South Wales serves to ensure that where another Act does differentiate between male and female it will prevail over s 32J so that an individual is not left in a "legal no‑man's land". The Registrar during the course of argument did not identify any particular statute which could not be construed so as to operate as intended in respect of a person whose sex was recorded in the Register as "non‑specific".

The Registrar's argument from inconvenience should be rejected.

The HCA concludes -

The Court of Appeal went beyond the scope of Norrie's application to the Registrar and the issue as to the Registrar's power under s 32DC raised by the Registrar's refusal to record her sex as "non‑specific". While the Court of Appeal did not proceed without encouragement from Norrie's counsel, it was neither necessary nor appropriate for it to accept that encouragement. It would have been sufficient for it to determine the issue raised by the determination of Norrie's application and the appeal from the Tribunal to hold that the Tribunal erred in answering the question as to the Registrar's power under s 32DC on the basis that the Act is predicated on the assumption that "all people can be classified into two distinct and plainly identifiable sexes, male and female."

The Act does not require that people who, having undergone a sex affirmation procedure, remain of indeterminate sex – that is, neither male nor female – must be registered, inaccurately, as one or the other. The Act itself recognises that a person may be other than male or female and therefore may be taken to permit the registration sought, as "non‑specific".

The judgment is concerned with the specific wording of the Act and Norrie's particular circumstances.

I have commented elsewhere that in looking beyond contested taxonomies of identity (male, female, other, transgender, queer, gay and so forth) we should be respecting Norrie as a person, rather than as a manifestation of particular attributes. We might also wonder at the expense involved in the NSW government's litigation.

31 March 2014

The Australian Law Reform Commission - one of those treasures that we should hope won't be further cut in the coming Budget - has released its 236 page discussion paper regarding a statutory cause of action in connection with serious invasions of privacy (aka the 'privacy tort').

The paper [PDF] follows the Issues Paper noted last year and reflects public consultation.

It features the following proposals and questions -

4. A New Tort in a New Commonwealth Act

Proposal 4–1 A statutory cause of action for serious invasion of privacy should be contained in a new Commonwealth Act (the new Act).

Proposal 4–2 The cause of action should be described in the new Act as an action in tort.

5. Two Types of Invasion and Fault
Proposal

5–1 First element of action: The new tort should be confined to invasions of privacy by:
(a) intrusion upon the plaintiff’s seclusion or private affairs (including by unlawful surveillance); or
(b) misuse or disclosure of private information about the plaintiff (whether true or not).

Proposal 5–2 Second element of action: The new tort should be confined to intentional or reckless invasions of privacy. It should not extend to negligent invasions of privacy, and should not attract strict liability.

Proposal 5–3 The new Act should provide that an apology made by or on behalf of a person in connection with any invasion of privacy alleged to have been committed by the person:
(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter; and
(b) is not relevant to the determination of fault or liability in connection with that matter.

Proposal 5–4 Evidence of an apology made by or on behalf of a person in connection with any conduct by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.

6. A Reasonable Expectation of Privacy
Proposal

6–1 Third element of action: The new tort should only be actionable where a person in the position of the plaintiff would have had a reasonable expectation of privacy, in all of the circumstances.

Proposal 6–2 The new Act should provide that, in determining whether a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances, the court may consider, among other things:
(a) the nature of the private information, including whether it relates to intimate or family matters, health or medical matters, or financial matters;
(b) the means used to obtain the private information or to intrude upon seclusion, including the use of any device or technology;
(c) the place where the intrusion occurred;
(d) the purpose of the misuse, disclosure or intrusion;
(e) how the private information was held or communicated, such as in private correspondence or a personal diary;
(f) whether and to what extent the private information was already in the public domain;
(g) the relevant attributes of the plaintiff, including the plaintiff’s age and occupation;
(h) whether the plaintiff consented to the conduct of the defendant; and
(i) the extent to which the plaintiff had manifested a desire not to have his or her privacy invaded

7. Seriousness and Proof of Damage

Proposal 7–1 Fourth element of action: The new Act should provide that the new cause of action is only available where the court considers that the invasion of privacy was ‘serious’. The new Act should also provide that in determining whether the invasion of privacy was serious, a court may consider, among other things, whether the invasion of privacy was likely to be highly offensive, distressing or harmful to a person of ordinary sensibilities in the position of the plaintiff.

Proposal 7–2 The plaintiff should not be required to prove actual damage to have an action under the new tort.

8. Balancing Privacy with Other Interests

Proposal 8–1 Fifth element of action: The new Act should provide that the plaintiff only has a cause of action for serious invasion of privacy where the court is satisfied that the plaintiff’s interest in privacy outweighs the defendant’s interest in freedom of expression and any broader public interest. A separate public interest defence would therefore not be needed.

Proposal 8–2 The new Act should include the following non-exhaustive list of public interest matters which a court may consider:
(a) freedom of expression, including political communication;
(b) freedom of the media to investigate, and inform and comment on matters of public concern and importance;
(c) the proper administration of government;
(d) open justice;
(e) public health and safety;
(f) national security;
(g) the prevention and detection of crime and fraud; and
(h) the economic wellbeing of the country.

9. Forums, Limitations and Other Matters

Proposal 9–1 Federal, state and territory courts should have jurisdiction to hear an action for serious invasion of privacy under the new Act.

Question 9–1 If state and territory tribunals should also have jurisdiction, which tribunals would be appropriate and why?

Proposal 9–2 The new Act should provide that the new tort be limited to natural persons.

Proposal 9–3 A cause of action for serious invasion of privacy should not survive for the benefit of the plaintiff’s estate or against the defendant’s estate.

Proposal 9–4 A person should not be able to bring an action under the new tort after either (a) one year from the date on which the plaintiff became aware of the invasion of privacy, or (b) three years from the date on which the invasion of privacy occurred, whichever comes earlier. In exceptional circumstances the court may extend the limitation period for an appropriate period, expiring no later than three years from the date when the invasion occurred.

Proposal 9–5 The new Act should provide that, in determining any remedy, the court may take into account:
(a) whether or not a party took reasonable steps to resolve the dispute without litigation; and
(b) the outcome of any alternative dispute resolution process.

10. Defences and Exemptions

Proposal 10–1 The new Act should provide a defence of lawful authority.

Proposal 10–2 The new Act should provide a defence for conduct incidental to the exercise of a lawful right of defence of persons or property where that conduct was proportionate, necessary and reasonable.

Proposal 10–3 The new Act should provide for a defence of absolute privilege for publication of private information that is co-extensive with the defence of absolute privilege to defamation.

Proposal 10–4 The new Act should provide for a defence of qualified privilege to the publication of private information where the defendant published matter to a person (the recipient) in circumstances where:
(a) the defendant had an interest or duty (whether legal, social or moral) to provide information on a subject to the recipient; and
(b) the recipient had a corresponding interest or duty in having information on that subject; and
(c) the matter was published to the recipient in the course of giving to the recipient information on that subject.
The defence of qualified privilege should be defeated if the plaintiff proves that the conduct of the defendant was actuated by malice.

Question 10–1 Should the new Act instead provide that the defence of qualified privilege is co-extensive to the defence of qualified privilege to defamation at common law?

Proposal 10–5 The new Act should provide for a defence of publication of public documents.

Proposal 10–6 The new Act should provide for a defence of fair report of proceedings of public concern.

Question 10–2 Should the new Act provide for a defence of necessity?
Proposal 10–7 The new Act should provide a safe harbour scheme to protect internet intermediaries from liability for serious invasions of privacy committed by third party users of their service.
Question 10–3 What conditions should internet intermediaries be required to meet in order to rely on this safe harbour scheme?

11. Remedies and Costs

Proposal 11–1 The new Act should provide that courts may award compensatory damages, including damages for the plaintiff’s emotional distress, in an action for serious invasion of privacy.

Proposal 11–2 The new Act should set out the following non-exhaustive list of factors that may mitigate damages for serious invasion of privacy:
(a) that the defendant has made an appropriate apology to the plaintiff about the conduct that invaded the plaintiff’s privacy;
(b) that the defendant has published a correction of any untrue information disclosed about the plaintiff;
(c) that the defendant has made an offer of amends in relation to the defendant’s conduct or the harm suffered by the plaintiff;
(d) that the plaintiff has already recovered compensation, or has agreed to receive compensation in relation to the conduct of the defendant;
(e) that the defendant had taken reasonable steps to settle the dispute with the plaintiff in order to avoid the need for litigation; and
(f) that the plaintiff had not taken reasonable steps to settle the dispute, prior to commencing or continuing proceedings, with the defendant in order to avoid the need for litigation.

Proposal 11–3 The new Act should set out the following non-exhaustive list of factors that may aggravate damages for serious invasion of privacy:
(a) that the plaintiff had taken reasonable steps, prior to commencing or continuing proceedings, to settle the dispute with the defendant in order to avoid the need for litigation;
(b) that the defendant had not taken reasonable steps to settle the dispute with the plaintiff in order to avoid the need for litigation;
(c) that the defendant’s unreasonable conduct at the time of the invasion of privacy or prior to or during the proceedings had subjected the plaintiff to special or additional embarrassment, harm, distress or humiliation;
(d) that the defendant’s conduct was malicious or committed with the intention to cause embarrassment, harm, distress or humiliation to the plaintiff; and
(e) that the defendant has disclosed information about the plaintiff which the defendant knew to be false or did not honestly believe to be true.

Proposal 11–4 The new Act should provide that the court may not award a separate sum as aggravated damages.

Proposal 11–5 The new Act should provide that, in an action for serious invasion of privacy, courts may award exemplary damages in exceptional circumstances and where the court considers that other damages awarded would be an insufficient deterrent.

Proposal 11–6 The total of any damages other than damages for economic loss should be capped at the same amount as the cap on damages for non-economic loss in defamation.
Proposal 11–7 The new Act should provide that a court may award the remedy of an account of profits.

Proposal 11–8 The new Act should provide that courts may award damages assessed on the basis of a notional licence fee in respect of the defendant’s conduct, in an action for serious invasion of privacy.

Proposal 11–9 The new Act should provide that courts may award an injunction, in an action for serious invasion of privacy.

Proposal 11–10 The new Act should provide that courts may order the delivery up and destruction or removal of material, in an action for serious invasion of privacy.

Proposal 11–11 The new Act should provide that courts may make a correction order, in an action for serious invasion of privacy.

Proposal 11–12 The new Act should provide that courts may make an order requiring the defendant to apologise to the plaintiff, in an action for serious invasion of privacy.

Proposal 11–13 The new Act should provide that courts may make a declaration, in an action for serious invasion of privacy.

Question 11–1 What, if any, provisions should the ALRC propose regarding a court’s power to make costs orders?

12. Breach of Confidence Actions for Misuse of Private Information

Proposal 12–1 If a statutory cause of action for serious invasion of privacy is not enacted, appropriate federal, state, and territory legislation should be amended to provide that, in an action for breach of confidence that concerns a serious invasion of privacy by the misuse, publication or disclosure of private information, the court may award compensation for the claimant’s emotional distress.

Proposal 12–2 Relevant court acts should be amended to provide that, when considering whether to grant injunctive relief before trial to restrain publication of private (rather than confidential) information, a court must have particular regard to freedom of expression and any other countervailing public interest in the publication of the material.

13. Surveillance Devices

Proposal 13–1 Surveillance device laws and workplace surveillance laws should be made uniform throughout Australia.

Proposal 13–3 Offences in surveillance device laws should include an offence proscribing the surveillance or recording of private conversations or activities without the consent of the participants. This offence should apply regardless of whether the person carrying out the surveillance is a participant to the conversation or activity, and regardless of whether the monitoring or recording takes place on private property.

Proposal 13–4 Defences in surveillance device laws should include a defence of responsible journalism, for surveillance in some limited circumstances by journalists investigating matters of public concern and importance, such as corruption.

Question 13–1 Should the states and territories enact uniform surveillance laws or should the Commonwealth legislate to cover the field?

Proposal 13–5 Surveillance device laws should provide that a court may make orders to compensate or otherwise provide remedial relief to a victim of unlawful surveillance.

Question 13–2 Should local councils be empowered to regulate the installation and use of surveillance devices by private individuals?

14. Harassment
Proposal

14–1 A Commonwealth harassment Act should be enacted to consolidate and clarify existing criminal offences for harassment and, if a new tort for serious invasion of privacy is not enacted, provide for a new statutory tort of harassment. Alternatively, the states and territories should adopt uniform harassment legislation

15. New Regulatory Mechanisms

Proposal 15–1 The ACMA should be empowered, where there has been a privacy complaint under a broadcasting code of practice and where the ACMA determines that a broadcaster’s act or conduct is a serious invasion of the complainant’s privacy, to make a declaration that the complainant is entitled to a specified amount of compensation. The ACMA should, in making such a determination, have regard to freedom of expression and the public interest.

Proposal 15–2 A new Australian Privacy Principle should be inserted into the Privacy Act 1988 (Cth) that would:
(a) require an APP entity to provide a simple mechanism for an individual to request destruction or de-identification of personal information that was provided to the entity by the individual; and
(b) require an APP entity to take reasonable steps in a reasonable time, to comply with such a request, subject to suitable exceptions, or provide the individual with reasons for its non-compliance.

Question 15–1 Should the new APP proposed in Proposal 15–2 also require an APP entity to take steps with regard to third parties with which it has shared the personal information? If so, what steps should be taken?

Question 15–2 Should a regulator be empowered to order an organisation to remove private information about an individual, whether provided by that individual or a third party, from a website or online service controlled by that organisation where:
(a) an individual makes a request to the regulator to exercise its power;
(b) the individual has made a request to the organisation and the request has been rejected or has not been responded to within a reasonable time; and
(c) the regulator considers that the posting of the information constitutes a serious invasion of privacy, having regard to freedom of expression and other public interests?

15–3 The Privacy Act 1988 (Cth) should be amended to confer the following additional functions on the Australian Information Commissioner in relation to court proceedings relating to interferences with the privacy of an individual:
(a) assisting the court as amicus curiae, where the Commissioner considers it appropriate, and with the leave of the court; and
(b) intervening in court proceedings, where the Commissioner considers it appropriate, and with the leave of the court.

The paper notes that the ALRC's inquiry

builds on four other recent inquiries into privacy law or related issues conducted in Australia, three of which recommended the enactment of a statutory cause of action.

The ALRC’s report, For Your Information: Privacy Law and Practice (ALRC Report 108, 2008) focused on data protection: information collection, access and use. The ALRC recommended that Commonwealth legislation should provide for a statutory cause of action for serious invasion of privacy.

In 2009, the New South Wales Law Reform Commission (NSWLRC) recommended that a general cause of action for invasion of privacy was required to provide a ‘basis for the ongoing development of the law of privacy in a climate of dynamic societal and technological change’.

In 2010, the Victorian Law Reform Commission (VLRC) issued the report, Surveillance in Public Places, which followed a decade-long inquiry into workplace privacy and privacy in public places.

In September 2011, the Department of the Prime Minister and Cabinet (DPM&C) released an Issues Paper on a statutory cause of action for invasion of privacy, prompted by a number of ‘high profile privacy breaches’ in Australia and overseas.

In addition to a continuing debate in Australia on the desirability of a statutory cause of action, there have been important developments in privacy protection in other countries. Privacy torts have been well-established in the United States for many decades, although the protection they provide is limited by the constitutional protection of free speech in the First Amendment of the US Constitution. Some states, such as California, have also introduced a statutory tort of invasion of privacy.

The United Kingdom has developed extensive legal protection of privacy by extending the equitable action for breach of confidence, under the influence of the Human Rights Act 1998 (UK). This Act requires the courts to give effect to the protection of rights and freedoms set out in arts 8 and 10 of the European Covenant on Human Rights.

The Canadian provinces of British Columbia, Manitoba, Newfoundland and Labrador, Quebec and Saskatchewan have enacted statutory torts for invasion of privacy, and the Ontario Court of Appeal has also recognised common law protection. New Zealand courts have recently recognised common law torts of misuse of private information and of intrusion.

The state of development of a country’s common law protection of privacy has a significant impact on the question of whether there is a need to legislate for a cause of action. Committees in both the United Kingdom and New Zealand have recommended against the introduction of a statutory cause of action, in view of the common law developments in those two countries.

In contrast, a common law tort for invasion of privacy has not yet developed in Australia, despite the High Court leaving open the possibility of such a development, in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd. While a tort of invasion of privacy has been recognised by two lower court decisions, no appellate court has confirmed the existence of this tort. The general consensus is that the likely direction of the future development of the common law is uncertain. Should a new cause of action be enacted?

The ALRC considers that the question of whether a statutory cause of action for serious invasion of privacy would be beneficial to the Australian community is best answered after considering:

the existing legal protections for privacy;

the gaps in that legal protection identified;

the precise elements of the proposed cause of action; and

any alternative ways in which the unacceptable gaps in the law might be filled.

Only a very few stakeholders who made submissions to the Inquiry told the ALRC that the law did not need to be changed at all, and that there were no gaps in the legal protection of privacy in Australia. Those who opposed the introduction of a new cause of action recognised the gaps in the law, but submitted that it would be preferable to fill those gaps in other ways. Many other stakeholders expressed their support for a statutory cause of action. Both stakeholders who supported and those who opposed the introduction of a new cause of action made submissions as to the desirable elements of any such action.

The cause of action proposed in this Discussion Paper is more precise than similar privacy actions recommended in other law reform reports, and in some respects more narrow. The ALRC believes that precision is important so that stakeholder groups, individuals and lawmakers can reach a more informed view on the potential interpretation and application of the proposed action, on the extent of protection it may provide to potential claimants, and on the impact it may have on those who would face potential liability. Only when these assessments are made can there be an informed debate on the relative desirability of the proposed statutory cause of action or other alternatives.

Privacy law must recognise other values and interests, such as freedom of expression. This is reflected in the design of the tort proposed in this Discussion Paper. While this may mean that one interest is not as protected or as unconstrained to the extent some advocates would prefer, the ALRC considers that the law may be able to find a middle ground where a balance can be reached and a degree of useful protection can be enacted.

The statutory cause of action is thus directed at serious invasions of privacy committed intentionally or recklessly with no countervailing justification or defence. If the statute provides remedies for such invasive conduct, Australia will have made an important and clear step in providing greater protection for privacy than is currently available. It will give Australians the privacy protections enjoyed by those in other countries, including the UK, New Zealand and Canada.

The statutory cause of action is not, however, the only way that greater protection could be achieved by statutory reform. This Discussion Paper, in Part 3, suggests other measures that should be considered to improve the protection in Australia of people’s privacy in the digital age, some in addition to and some as an alternative to a new statutory cause of action.

[Disclosure: I'm cited numerous times on the basis of a submission in response to the Issues Paper.]

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